The Census Citizenship Question Endgame–What Will (and Should) the Supreme Court Do?

I have now had a chance to make a first pass through Judge Furman’s 277-page opinion holding that the inclusion of the citizenship question on the census violates the Administrative Procedure Act. The key conclusion was that Commerce Secretary Wilbur Ross wanted the citizenship question on the census for whatever reason (likely political reasons). They gave as a pretext the argument that DOJ needed such data to litigate Voting Rights Act cases, but there was no evidence DOJ needed it for that; no evidence it is more helpful than the data DOJ already gets through the ACS; and no evidence that the Census Dept followed Congressional statutes and its own rules in seeking to add the question on the census.  Mark Joseph Stern has details on Judge Furman’s analysis and conclusions, and I agree with Justin Levitt that “Judge Furman’s 277-page decision today on the census is extremely important, extremely thorough, and _extremely_ careful. Indeed, though it chronicles substantial gov’t abuse, the opinion itself is remarkably restrained. And a big win for that reason.”

The question is what comes next, given the impending June deadline for finalizing the census questions for printing—a massive endeavor.

The Supreme Court is already hearing a case about one aspect of Judge Furman’s decisions: whether the judge improperly allowed some discovery into the mindset of Secretary Ross and AAAG John Gore. That question seems mostly moot: Judge Furman relied only on material in the public record in reaching his decisions, so a remand would simply lead to the same decision. (It may not be technically moot.)

But given the press of time, I expect DOJ will seek a stay of Judge Furman’s ruling, perhaps by going directly to the Supreme Court and seeking to bypass the 2nd Circuit. DOJ might even seek cert. directly rather than going through the 2d Circuit, and the Supreme Court might even treat a stay request as a cert. petition and grant it.

Justin suggests that would be procedurally irregular. But I’m not so sure. Yes DOJ has been running to SCOTUS a lot to try to get it to break its usual procedures and hear cases early. The Court has mostly rebuffed those requests. But not with the census, and for good reason. It seems to me that if the Court does not hear this case fully it would either (1) let plaintiffs run out the clock before the case gets full Court review or (2) the case gets decided as a stay, without a full SCOTUS opinion, on the so-called “shadow docket.” That’s really dissatisfying that we may get a dispositive SCOTUS ruling with no explanation.

So I think things get expedited, and it would not be surprising for the normal schedules to be changed and contracted so that this all gets resolved by June (rendering other cases involving the census moot).

We’ll see.

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